Who Owns "Hillary.Com"? Political Speech and the First Amendment in Cyberspace

Transcription

1 University of Akron: Ohio's Polytechnic University Akron Law Publications The School of Law September 2014 Who Owns "Hillary.Com"? Political Speech and the First Amendment in Cyberspace Jacqueline D. Lipton Case Western Reserve University School of Law, Follow this and additional works at: Part of the Law Commons Recommended Citation Lipton, Jacqueline D., "Who Owns "Hillary.Com"? Political Speech and the First Amendment in Cyberspace" (2014). Akron Law Publications. Paper This is brought to you for free and open access by the The School of Law at It has been accepted for inclusion in Akron Law Publications by an authorized administrator of For more information, please contact The University of Akron is Ohio s Polytechnic University (

2 WHO OWNS hillary.com? POLITICAL SPEECH AND THE FIRST AMENDMENT IN CYBERSPACE JACQUELINE D. LIPTON * ABSTRACT In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns hillaryclinton.com, the more generic hillary.com is registered to a software firm, Hillary Software, Inc. What about hillary2008.com? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain name law and policy as to domain name use in the political context. Current domain name policy is focused on protecting trademark uses of domain names against bad faith commercial cybersquatters. It does not deal with protecting important uses of domain names as part of the political process. This article identifies the current problems with Internet domain name policy in the political context and makes recommendations for developing clearer guidelines for uses of political domain names. In so doing, it creates a new categorization system for different problems confronting the political process in cyberspace, including: (a) socially and economically wasteful political cybersquatting ; (b) politicial cyberfraud which might involve conduct such as registering a politician s name as a domain name to promulgate a misleading message about the politician; and, (c) competition between politicians names and competing trademark interests. TABLE OF CONTENTS INTRODUCTION... I. POLITICAL CYBERSQUATTING... A. Politicians Names and the Anti-Cybersquatting Consumer Protection Act... B. Politicians Names and the Uniform Domain Name Dispute Resolution Policy... C. Application of Cyberfraud Legislation to Political Cybersqsuatting... * Professor, Co-Director, Center for Law, Technology and the Arts, Associate Director, Frederick K Cox International Law Center, Case Western Reserve University School of Law, East Boulevard, Cleveland, Ohio 44106, USA, Jacqueline.Lipton@case.edu, Fax: (216) The author would like to thank Professor Mark Janis for comments on an earlier iteration of this article. All mistakes or omissions are my own.

3 D. Political Cybersquatting, Defamation Law and the Right of Publicity Defamation The Right of Publicity California s Business and Professions Code... E. Political Cybersquatting: Possible Solutions... II. POLITICAL CYBERFRAUD... A. Distinguishing Cyberfraud from Cybersquatting... B. California s Political Cyberfraud Legislation... C. Laws Protecting Personal Reputation... D. Political Cyberfraud and the Anti-Cybersquatting Regulations... E. Regulating Cyberfraud vs Regulating Cybersquatting... III. POLITICIANS NAMES VS TRADEMARKS... A. Hillary.Com : A Case Study... B. Politicians vs Legitimate Trademark Owners: Possible Solutions... IV. CONCLUSIONS AND FUTURE DIRECTIONS... INTRODUCTION Who owns hillary.com? Or obama.com? Or guiliani.com? How important might some of these names be in the lead-up to the next presidential election? If past history is anything to go by, they could be extremely important, and valuable as John Kerry found out the hard way after naming John Edwards as his running mate in The kerryedwards.com domain name was already registered to a Mr Kerry Edwards who attempted to auction it to the highest bidder throughout the course of the 2004 presidential election. 1 Internet domain names are becoming increasingly important in political campaigns to identify political websites both for fundraising purposes, and to disseminate information about relevant policy issues. An Internet presence is now invaluable for a politician. The Internet can be used to reach an audience on a scale never before possible for a fraction of the cost of other media conduits. In some respects this potentially levels the playing field for politicians and political commentators alike regardless of their fund raising abilities. 1 See Nobody Wants Kerryedwards.Com, August 3, 2004 (last viewed on March 14, 2007, and available at ) (discussing attempt by Mr Kerry Edwards to auction the domain name kerryedwards.com to the highest bidder during the course of the 2004 presidential election). 2

4 However, an Internet presence with an easy-to-guess and easy-to-recognize domain name can cause problems for politicians. Many of the problems stem from the fact that the current Internet domain name regulation system is largely premised on protecting commercial trademark interests in domain names, 2 and not on protecting political interests. 3 There are significant gaps in the law when it comes to the use of domain names in politics. Particularly during a political campaign, it is important that those wishing to use available media to discuss candidates and their views should be able to do so in the least socially misleading and least economically wasteful way possible. There are no clear rules about how domain names, particularly those corresponding to politicians names, may be legitimately used in the political process. Conversely, there are no clear rules prohibiting socially wasteful or blatantly misleading use of political domain names. The current domain name regulation system is focused on preventing trademarkbased cybersquatting. Cybersquatting in this context has been described as speculatively purchasing a domain name with the intention of selling it for a profit 4 usually with respect to a well-known name corresponding with a trademark. 5 Application of current laws to prevent misleading or wasteful registrations and uses of political domain names is limited in two ways. The first is that it will only protect trademarked, and therefore trademarkable, political domain names, and the second is that it will only protect those names against bad faith cybersquatting. These are serious limitations. Many policitican s names will not be trademarkable 6 and much of the abusive conduct that arises in an electoral context involves misleading content on a political website rather than an attempt to sell a particular political domain name for a profit. This article makes several important contributions to the debate on facilitating effective political speech in cyberspace. The first is to create a novel categorization scheme for the various types of domain name registrations that may cause problems for politicians. The development of this categorization scheme is essential in the political context. In fact, the lack of a categorization system in the trademark context has caused 2 Jacqueline Lipton, Beyond Cybersquatting: Taking Domain Names Past Trademark Policy, 40 WAKE FOREST L R 1361, 1363 (2005). ( [T]he current dispute resolution mechanisms [for domain name disputes] are focused on the protection of commercial trademark interests, often to the detriment of other socially important interests that may inhere in a given domain name. ) 3 id, (discussion of the gaps in current regulations in the political context). 4 Ira Nathenson, Showdown at the Domain Name Corral: Property Rights and Personal Jurisdiction over Squatters, Poachers and Other Parasites, 55 U PITT L REV 911, (1997). 5 Cybersquatting is currently defined in the Wikipedia as: is registering, trafficking in, or using a domain name with bad-faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price. (last viewed on March 14, 2007 and available at 6 Generally, personal names are not registrable as trademarks: 15 U.S.C (c). See also GILSON ON TRADEMARK PROTECTION AND PRACTICE, 2.03[d]. 3

5 many problems of development and interpretation of the domain name regulationsystem in recent years. 7 A second important aim of this article is to identify the limitations of the current domain name system in the political context and to suggest options for future development that would better accommodate the needs of the political process in cyberspace. Part I deals with situations that may be labeled political cybersquatting where a registrant with no personal connection to a relevant name has registered it in order to sell it for profit to the relevant politician or another person. Part II deals with conduct that may be labeled as political cyberfraud in which an individual or political group registers a relevant domain name to promulgate a misleading message about a politician. This category of conduct may coincide with cybersquatting in some contexts, but the legal issues raised by the two categories of conduct are quite different. Part III deals with the more unusual situation involving competitions between trademark holders and politicians with similar names for example, Hillary Software, Inc. 8 and Senator Hillary Clinton if they both wanted the hillary.com domain name. Part IV provides conclusions and suggests options for future developments in political domain name regulation. II. POLITICAL CYBERSQUATTING A. POLITICIANS NAMES AND THE ANTI-CYBERSQUATTING CONSUMER PROTECTION ACT Political cybersquatting may be defined as the political analog to traditional cybersquatting. It would include registration and use of a domain name corresponding with a politician s name with the intent to sell the domain name for a profit to the politician or to a third party. While the conduct is similar and similarly motivated in both the trademark and the political contexts, different legal and theoretical issues arise. Traditional cybersquatting involves people registering often multiple domain names corresponding with registered trademarks with the intent to profit from selling the names to the relevant trademark holders or a third party. 9 This conduct was originally prohibited under trademark infringement 10 and dilution 11 law. Later, additional 7 See, for example, discussion in Margreth Barrett, Domain Names, Trademarks, and the First Amendment: Searching for Meaningful Boundaries, 39 CONNECTICUT L R 973 (2007); Jacqueline Lipton, Commerce vs Commentary: Gripe Sites, Parody and the First Amendment in Cyberspace, forthcoming, WASHINGTON UNIVERSITY L R, 2007; Jacqueline Lipton, Beyond Cybersquatting: Taking Domain Names Past Trademark Policy, 40 WAKE FOREST L R 1361 (2005). 8 The current holder of the hillary.com domain name. 9 Cybersquatting is currently defined in the Wikipedia as: is registering, trafficking in, or using a domain name with bad-faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price. (last viewed on March 14, 2007 and available at see also 15 U.S.C. 1125(d) U.S.C. 1114(1)(a), 1125(a)(1) statutory prohibitions against trademark infringement at the federal level for registered and common law marks respectively, premised on creation of consumer 4

6 regulatory measures were taken to proscribe this conduct. In the United States, the Anti- Cybersquatting Consumer Protection Act ( ACPA ) was inserted into the Lanham Act 12 in 1999 to combat this conduct. This legislation prohibits the practice of cybersquatting and sets out a number of bad faith factors 13 that courts can use in determining whether or not particular conduct falls within the notion of a bad faith intent to profit from registration of a relevant domain name. At roughly the same time, the Internet Corporation for Assigned Names and Numbers ( ICANN ) 14 adopted the Uniform Domain Name Dispute Resolution Policy ( UDRP ) 15 to achieve similar ends. The UDRP has been extremely popular in practice because it is implemented under private contract between domain name registrants and domain name registrars 16 and hence has a more global reach than domestic legislation. It requires domain name registrants to submit to a mandatory arbitration procedure in the event that someone complains about a bad faith registration or use of a domain name. 17 The arbitrations are fast, 18 inexpensive, 19 and largely online procedures 20 that can result confusion as to source of relevant goods or services. See also Planned Parenthood Federation of America v Bucci, 42 U.S.P.Q. 2d 1430 (S.D.N.Y., 11997) (for an example of the use of traditional trademark infringement law to prohibit unauthorized bad faith registration and use of a domain name corresponding with someone else s registered trademark) U.S.C. 1125(c), 1127 (federal statutory prohibitions on trademark dilution the lessening of the capacity of a famous mark to identify or distinguish goods or services regardless of consumer confusion). See also Panavision Int l v Toeppen, 141 F 3d 1316 (9 th Cir, 1998) (an example of a successful trademark dilution action against cybersquatting) U.S.C. Chapter U.S.C. 1125(d)(1)(B)(i). The body that regulates the domain name system: see for further information. 15 The full text of the UDRP is available at: (last viewed on March 14, 2007). 16 UDRP, clause 2 ( By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights. ) 17 UDRP, clause 4(a) ( You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that: (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith. ) 18 A domain name arbitration will generally take less time than judicial proceedings, typically taking around two months for a decision to be issued. See InterNic FAQs on the Uniform Domain Name Dispute Resolution Policy (UDRP), last viewed on March 14, 2007 and available at: 5

7 in transfer of a domain name to a rightful owner 21 if the complainant can establish to the arbitration panel s satisfaction that the registration or use of the domain name was in bad faith 22 and the registrant had no legitimate purpose for registering the name. 23 Political cybersquatting, however, is not always covered by these laws, particularly if the politician s name in question is not considered to be trademarked or trademarkable. 24 This will certainly be true of traditional trademark infringement 25 and dilution actions, 26 and also general trademark-based anti-cybersquatting actions under the ACPA. 27 While some additional anticybersquatting laws do deal specifically with the protection of individual s names against bad faith cybersquatting even in the absence of a trademark interest in the name, 28 they may be limited in application. The obvious example of an anti-cybersquatting law that protects non-trademarked personal names 19 The range of fees for an arbitration will be around $1,000-$2,000 for a single arbitrator panel and a little more for a larger panel. See InterNic FAQs on the Uniform Domain Name Dispute Resolution Policy (UDRP), last viewed on March 14, 2007 and available at: 20 Rules for Uniform Domain Name Dispute Resolution Policy, last viewed on March 14, 2007 and available at: Rule 3(b) (complaint to be submitted in hard copy and electronic format); Rule 5(b) (response to be submitted in hard copy and electronic format); Rule 13 (no in-person hearings); Rule 16(b) (Panel decisions to be posted on panel web site). 21 UDRP, clause 4(i) ( The remedies available to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation of your domain name or the transfer of your domain name registration to the complainant. ) UDRP, clause 4(b). UDRP, clause 4(c). 24 Generally, personal names are not registrable as trademarks: 15 U.S.C (c). See also GILSON ON TRADEMARK PROTECTION AND PRACTICE, 2.03[d] U.S.C. 1114(1)(a), 1125(a)(1) (federal statutory prohibitions against trademark infringement for common law and registered marks respectively, premised on creation of consumer confusion as to source of relevant goods or services.) U.S.C. 1125(c), 1127 (federal statutory prohibitions on trademark dilution prohibiting the lessening of a mark s capacity to distinguish particular goods or services regardless of consumer confusion) U.S.C. 1125(d) (prohibition of cybersquatting based on registration of a domain name similar to a trademark) U.S.C (this section protects personal names against cybersquatting and is not limited to trademark interests in personal names). 6

8 against cybersquatting is 1129 of the Lanham Act, 29 introduced in 1999 as part of the ACPA: 30 Any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person s consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person. 31 This will cover some political cybersquatting, although there will also be exceptions. In the kerryedwards.com scenario, 32 for example, it might technically have been possible for the registrant, Mr Kerry Edwards, to mount several defenses to an ACPA challenge. He might have argued that the domain name in question did not correspond to the name of another living person on the basis that Kerry Edwards was not the name of either Senator Kerry or Senator Edwards, but rather an amalgam of both of their names. He might also have argued that, even if the name in question did consist of the name of another living person, it also consisted of his own personal name Kerry Edwards and that his own right to a domain name corresponding to his personal name must equally be protected by With respect to the first argument, the defense might fail on the basis that 1129 also protects complainants against bad faith registrations of domain names that are substantially and confusingly similar to their own personal names. Arguably, the amalgam of the names Kerry and Edwards in kerryedwards.com in the lead up to a presidential election where Senators Kerry and Edwards names are those on the presidential ticket would be considered a registration of a name substantially and confusingly similar to the Senators respective personal names. The second potential defense argument may be more problematic, but a court taking at least an economic analysis of the situation may well find that the use of the name for a presidential campaign would be less socially and economically wasteful than the use of a name by a person with a corresponding personal name who is simply trying to make a profit from selling the name U.S.C This provision is to be distinguished from 15 U.S.C. 1125(d) which is also part of ACPA but is restricted to prohibitions on bad faith cybersquatting where the cybersquatter has registered a domain name that is similar to a trademark, as opposed to a personal name U.S.C. 1129(1)(A). 32 See Kerry Edwards is Real and Sells Kerryedwards.Com, July 19, 2004, last viewed on March 14, 2007 and available at: ( KerryEdwards.com is owned by a 34-year-old man named Kerry Edwards, a part-time bail bondsman in Indianapolis. He registered KerryEdwards.com two years ago as a personal site for family and friends. ) 7

9 There were two additional unusual factors about the kerryedwards.com situation that may well not be repeated in many future cases. For one thing, Mr Kerry Edwards happened fortuitously to have registered the domain name several years before the presidential campaign featuring Senators Kerry and Edwards was launched. 33 Thus, in this particular case, had the senators brought an action against Mr Kerry Edwards, they may well have failed on the basis that he had not registered the domain name 34 with the intent to profit from its sale as required by The other factor, which is of course related to this first factor, is that Mr Kerry Edwards happened to have a personal name that corresponded with the two names on the presidential ticket. This is unlikely to happen in many future cases. However, it is possible that a private individual might have a personal name corresponding with an individual politician s name in a future case and this could raise many of the difficulties that could have arisen had kerryedwards.com been disputed in the lead-up to the 2004 presidential election. How many John McCains are out there, for example, or Joe Bidens or Chris Dodds? In this respect, politicians with unusual personal names may have big advantages over those with more common names make way for Arnold Schwarzenegger and Rudy Giuliani, not to mention Barack Obama. It obviously does not make sense that unusual political names should fortuitously receive more protection than more common names in the domain space. Other than the relatively unusual situations where a private individual s name may correspond with a relevant domain name, there are a few other practical problems with the ACPA provisions protecting personal names from bad faith registrations. One is that it does not have a global reach, although at least a federal statute is better in terms of legal harmonization than a pastiche of often-piecemeal state laws. 36 The other problem with 1129 of the Lanham Act is arguably general lack of familiarity with its provisions, partly perhaps because they have been overshadowed by the UDRP which covers much of the same ground as the ACPA in a quick, inexpensive, efficient, and, of course, global manner. Since the introduction of both the ACPA and the UDRP in 1999, many more complaints have been brought under the UDRP than the ACPA, even with respect to names of private individuals. 37 This is not surprising, but, as recent UDRP arbitrations id. As opposed to having used it U.S.C. 1129(1)(A) ( Any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person s consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person. )(emphasis added). 15 U.S.C. 1125(d) would not have applied here because the Kerry Edwards name was not trademarked, nor was it likely trademarkable in the electoral context: Generally, personal names are not registrable as trademarks: 15 U.S.C (c). See also GILSON ON TRADEMARK PROTECTION AND PRACTICE, 2.03[d]. 36 See discussion of some relevant Californian state laws in Parts, infra. 37 For example, Roberts v Boyd, Case No. D (WIPO Arb. and Mediation Ctr., Admin. Panel Decision, May 29, 2000) (involving the Julia Roberts name) (last viewed on March 14, 2007 and available at Springsteen v Burgar, Case No D (WIPO Arb. and Medication Ctr., Admin. Panel Decision, Jan. 5, 2001) (involving Bruce Springsteen s name) (last viewed on march 14, 2007 and available at 8

10 have shown, the UDRP is not as easily geared to combat cybersquatting involving any personal names, let alone political personal names, as 1129 of the Lanham Act. B. POLITICIANS NAMES AND THE UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY As already noted, the UDRP contains certain procedural advantages for a complainant concerned with an act of bad faith cybersquatting. Its main limitation in the context of political cybersquatting is that it does not specifically protect personal names against bad faith registrations and uses. This does not mean that no private individuals have attempted to utilize the UDRP to protect their interests in relevant domain names. In fact, some celebrities have been quite successful in this context. 38 Even some politicians have succeeded here. 39 The problem has been that, in the absence of a specific protection for personal names under the UDRP, complainants must successfully assert a trademark interest in their personal names. 40 This can sometimes be done quite easily: Rita Rudner v. Internetco Corp., (WIPO Case No. D , August 3, 2000) (involving Rita Rudner s personal name) (last viewed on March 14, 2007 and available at: Helen Folsade Adu, known as Sade v. Quantum Computer Services Inc., (WIPO Case No. D , Sep. 26, 2000) (involving Sade s stage name) (last viewed on March 14, 2007 and available at Friends of Kathleen Kennedy Townsend v Birt (WIPO Case No D ) (involving Kathleen Kennedy Townsend s name) (last viewed at March 14, 2007 and available at Ciccone v Parisi (WIPO Case No D )(involving the singer Madonna s stage name) (last viewed on March 14, 1007 and available at: Hillary Rodham Clinton v Michele Dinoia a/k/a SZL.com (National Arbitration Forum Claim No. FA , March 18, 2005) (involving the domain name hillaryclinton.com ) (last viewed on March 14, 2007 and available at 38 For example, Roberts v Boyd, Case No. D (WIPO Arb. and Mediation Ctr., Admin. Panel Decision, May 29, 2000) (involving the Julia Roberts name) (last viewed on March 14, 2007 and available at Ciccone v Parisi (WIPO Case No D )(involving the singer Madonna s stage name) (last viewed on March 14, 1007 and available at: 39 Hillary Rodham Clinton v Michele Dinoia a/k/a SZL.com (National Arbitration Forum Claim No. FA , March 18, 2005) (involving the domain name hillaryclinton.com ) (last viewed on March 14, 2007 and available at: 40 UDRP, clause 4(a)(i) (complainant must establish trademark interests corresponding with relevant domain name as one of the bases for her complaint). This was certainly played out in domain name disputes corresponding with the personal names of Julia Roberts, Madonna and Hillary Clinton. UDRP arbitrators established that all of these people had trademark interests in their personal names to support their UDRP complaints. See Roberts v Boyd, Case No. D (WIPO Arb. and Mediation Ctr., Admin. Panel Decision, May 29, 2000) (involving the Julia Roberts name) (last viewed on March 14, 2007 and available at Ciccone v Parisi (WIPO Case No D )(involving the singer Madonna s stage name) (last viewed on March 14, 1007 and available at: 9

11 for example, some celebrities do hold registered trademarks in their names if they use them as commercial trademarks. 41 In other cases, UDRP arbitrators have been prepared to accept common law trademark rights in a famous celebrity s 42 or politician s name. 43 However, in the case of even famous personal names of celebrities and politicians, UDRP arbitrators do not always accept a trademark interest on the part of the complainant. When Bruce Springsteen and his management initiated a UDRP arbitration for transfer of the springsteen.com name from a registrant utilizing it for an unauthorized fan website, 44 the majority arbitration panelists were not convinced that even a celebrity as popular as Springsteen necessarily had a common law trademark right in his personal name. 45 In the political context, Kathleen Kennedy Townsend failed to Hillary Rodham Clinton v Michele Dinoia a/k/a SZL.com (National Arbitration Forum Claim No. FA , March 18, 2005) (involving the domain name hillaryclinton.com ). 41 For example, the singer Madonna has registered Madonna as a trademark. See Ciccone v Parisi (WIPO Case No D )(involving the singer Madonna s stage name) (last viewed on March 14, 1007 and available at: 4 ( Complainant is the well-known entertainer Madonna. She is the owner of U.S. Trademark Registrations for the mark MADONNA for entertainment services and related goods (Reg. No. 1,473,554 and 1,463,601). She has used her name and mark MADONNA professionally for entertainment services since ) 42 For example in the Julia Roberts case: Roberts v Boyd, Case No. D (WIPO Arb. and Mediation Ctr., Admin. Panel Decision, May 29, 2000) (involving the Julia Roberts name) (last viewed on March 14, 2007 and available at 6 ( Having decided that Complainant has common law trademark rights in her name, the next consideration was whether the domain name <juliaroberts.com> was identical to or confusingly similar with Complainant s name. ) 43 For example in the case of the hillaryclinton.com domain name: Hillary Rodham Clinton v Michele Dinoia a/k/a SZL.com (National Arbitration Forum Claim No. FA , March 18, 2005) (last viewed on March 14, 2007 and available at ( The Panel finds that Complainant s uncontested allegations establish common law rights in the HILLARY CLINTON mark sufficient to grant standing under the UDRP. Complainant alleges that the HILLARY CLINTON mark has become distinctive through Complainant s use and exposure of the mark in the marketplace and through use of the mark in connection with Complainant s political activities, including a successful Senate campaign. ) 44 Springsteen v Burgar, Case No D (WIPO Arb. and Medication Ctr., Admin. Panel Decision, Jan. 5, 2001) (involving Bruce Springsteen s name) (last viewed on march 14, 2007 and available at 45 id. 6 ( It is common ground that there is no registered trade mark in the name "Bruce Springsteen". In most jurisdictions where trade marks are filed it would be impossible to obtain a registration of a name of that nature. Accordingly, Mr Springsteen must rely on common law rights to satisfy this element of the three part test. It appears to be an established principle from cases such as Jeanette Winterson, Julia Roberts, and Sade that in the case of very well known celebrities, their names can acquire a distinctive secondary meaning giving rise to rights equating to unregistered trade marks, notwithstanding the non-registerability of the name itself. It should be noted that no evidence has been given of the name "Bruce Springsteen" having acquired a secondary meaning; in other words a recognition that the name should be associated with activities beyond the primary activities of Mr. Springsteen as a composer, performer and recorder of popular music. In the view of this Panel, it is by no means clear from 10

12 convince UDRP arbitrators 46 that she had a trademark interest in her personal name in the context of a gubernatorial election in Maryland. 47 Interestingly, the panel suggested that supporters of Townsend may have been able to assert a trademark interest in her name, 48 and that Townsend herself may have successfully brought an action under 1129 of the Lanham Act. 49 It has been suggested that the UDRP be revised to incorporate provisions protecting personal names from bad faith registration and use. 50 However, to date, no revisions have been made and the World Intellectual Property Organization ( WIPO ) has suggested further inquiry into the need for such revisions. 51 It should be borne in mind that the UDRP is a global arbitration process. The protection of personal names on a global scale may well raise a number of greater difficulties than adopting such provisions at the domestic level, 52 such as in 1129 of the Lanham Act. On the global scale, there are more names and presumably more people, even potentially famous people, with similar or the same names. Additionally, different legal systems may well take differing the UDRP that it was intended to protect proper names of this nature. As it is possible to decide the case on other grounds, however, the Panel will proceed on the assumption that the name Bruce Springsteen is protected under the policy; it then follows that the domain name at issue is identical to that name. ) 46 Friends of Kathleen Kennedy Townsend v Birt (WIPO Case No D ) (involving Kathleen Kennedy Townsend s name) (last viewed at March 14, 2007 and available at 47 id, 6 ( The Panel finds that the protection of an individual politician's name, no matter how famous, is outside the scope of the Policy since it is not connected with commercial exploitation as set out in the Second WIPO Report. ) 48 id, ("Here, the claim for the domain names is brought by the individual politician, and not by the political action committee actively engaged in the raising of funds and promotion of Complainant's possible campaign. Had the claim been brought in the name of the Friends of Kathleen Kennedy Townsend, the result might well have been different. But it was not. ) 49 id, ("This does not mean that Complainant is without remedy. The ACPA contains express provisions protecting the rights in personal names. ) It is not clear from the record why Townsend did not pursue a 1129 action. 50 WIPO, Second WIPO Internet Domain Name Process: The Recognition of Rights and the Use of Names in the Internet Domain Name System, Sept 3, 2001 (last viewed on March 14, 2007 and available at id, ( It is recommended that no modification be made to the UDRP to accommodate broader protection for personal names than that which currently exists in the UDRP... In making this recommendation, we are conscious of the strength of feeling that the unauthorized, bad faith registration and use of personal names as domain names engenders. We believe, however, that the most appropriate way in which the strength of this feeling should be expressed is through the development of international norms that can provide clear guidance on the intentions and will of the international community. ) 52 See discussion of this issue in WIPO, Second WIPO Internet Domain Name Process: The Recognition of Rights and the Use of Names in the Internet Domain Name System, Sept 3, 2001 (last viewed on March 14, 2007 and available at

13 attitudes to the protection of personal names in the domain space, whether they be political names, celebrity names, or private individual s names. 53 C. APPLICATION OF CYBERFRAUD LEGISLATION TO POLITICAL CYBERSQUATTING There are some other possible legal avenues for politicians concerned about political cybersquatting. California s Political Cyberfraud Abatement Act ( PCAA ), 54 for example, prohibits engaging in acts of political cyberfraud which include conduct concerning a political Website: that is committed with the intent to deny a person access to a political Web site, deny a person the opportunity to register a domain name for a political Web site, or cause a person reasonably to believe that a political Web site has been posted by a person other than the person who posted the Web site. 55 Some aspects of this may cover political cybersquatting, even though it is notionally directed at conduct described as cyberfraud. 56 Political cybersquatting would not likely be covered by the third statutory prohibition on cyberfraud - causing a person reasonably to believe that a political website has been posted by a person other than the person who posted the website. This is because the point of cybersquatting is to sell the name for a profit rather than to make misleading use of the site. It is of course possible that a domain name registrant could use a domain name for both purposes: that is, disseminating misleading information about a politician while at the same time trying to sell the domain name. However, the misleading information part of such conduct is categorized throughout this article as political cyberfraud rather than political cybersquatting. This is because there is a need to separate and categorize different types of conduct relating to political domain names in order to provide appropriately tailored legal solutions for relevant conduct. It is possible that political cybersquatting would be included in the first two prohibitions in the Californian PCAA. It may count as conduct intended to deny a person access to a political website or to deny a person the opportunity to register a domain name for a political website. The PCAA further defines political cybersquatting activities as including, but not being limited to, the following conduct: id. Cal. Elec. Code, (Deering Supp. 2005). Id., 18320(c)(1). 56 Political cyberfraud is defined in 18320(c)(1) of the California Elections Code rather broadly as: a knowing and willful act concerning a political Web site that is committed with the intent to deny a person access to a political Web site, deny a person the opportunity to register a domain name for a political Web site, or cause a person reasonably to believe that a political Web site has been posted by a person other than the person who posted the Web site, and would cause a reasonable person, after reading the Web site, to believe the site actually represents the views of the proponent or opponent of a ballot measure. 12

14 (A) Intentionally diverting or redirecting access to a political Web site to another person's Web site by the use of a similar domain name. 57 (C) Registering a domain name that is similar to another domain name for a political Web site. 58 (D) Intentionally preventing the use of a domain name for a political Web site by registering and holding the domain name or by reselling it to another with the intent of preventing its use, or both. 59 These are all examples of conduct that might deny a politician access to a relevant domain name, although they may not all technically amount to political cybersquatting. A person who engages in political cybersquatting might not necessarily be regarded as having intentionally diverted or redirected access to a political web site to another website by the use of a similar domain name. In situations where the politician in question has not yet registered a relevant domain name, it would be difficult to argue that access was being diverted or redirected from the politician s website to another website. If the politician never had a website to begin with, this provision may have no application, although it may well apply to a situation where the politician does have a website, but has not registered all possible permutations of the relevant domain name. Senator Barack Obama, for example, has registered barackobama.com, but at the time of writing does not appear to have registered barack.com or obama.com. If someone else registered either of these names, as indeed currently appears to be the case with barack.com, Senator Obama may be able to bring a successful complaint under the PCAA 60 on the basis that the name diverts web users from his own website. Presumably, he would have to prove this to be the case in practice. It is not clear what would be necessary in this context: for example, would he simply have to prove that consumers were initially confused by typing the wrong domain name into their web browser and ending up at the wrong website, even if they were not thereafter prevented from finding his site through use of their browsers or search engines? id, 18320(c)(1)(A). id, 18320(c)(1)(C). id, 18320(c)(1)(D). id, 18320(c)(1)(A). 61 This would be similar to the initial interest confusion doctrine that has arisen in the commercial trademark context with respect to a domain name registrant effectively confusing a search engine rather than an Internet user as to the relationship between a domain name and a trademark. Even though Internet users would not necessarily be confused once they arrived at the site they were not actually searching for, courts have been prepared to find the consumer confusion requirement of trademark infringement law made out on the basis of the notion of initial interest confusion. See, for example, Brookfield Communications Inc v West Coast Entertainment Corp, 174 F 3d 1036, (9 th Cir 19999); Eric Goldman, Deregulating Relevancy in Internet Trademark Law, 54 EMORY LAW JOURNAL 507, 559 ( [Initial interest confusion] lacks a rigorous definition, a clear policy justification, and a uniform standard for analyzing claims. With its doctrinal flexibility, [it] has become the tool of choice for plaintiffs to shut down junior users who have not actually engaged in misappropriative uses. ; Panavision Int l v Toeppen, 141 F 3d 1316 (9 th Cir., 1998) (consumers would not actually have been confused as to source by defendant s website, but may have been distracted from finding the plaintiff s actual web presence). 13

15 Similar comments may be made about sub-section (C) supra. Registering a domain name that is similar to another domain name for a political website may not include situations where the politician in question has not yet registered a domain name corresponding with her personal name. However, where the politician in question already does have a web presence, this sub-provision may be more useful than subsection (A) because it does not require the complainant to establish an intent to divert or redirect access to the website. It only requires registration of a name that is similar to an existing political domain name. Sub-section (D) looks to be much more directed at the kind of conduct described in this article as political cybersquatting than the other provisions. It prohibits intentionally preventing the use of a domain name for a political website by registering and holding the domain name or by reselling it to another with the intent of preventing its use, or both. This does not appear to require the politician in question to have already registered any domain name. It would cover a situation where a politician was prevented from registering a name she wanted as a domain name by a registrant who either holds on to the name and does not resell it, or by a registrant who sells the name with the intent to prevent its use by the politician. However, the drafting of this provision may still be somewhat problematic in the situations described here as political cybersquatting. For one thing, the provision does not cover situations where the registrant of the domain name is prepared to sell the domain name to the politician for a profit. It only appears to cover situations where the registrant is attempting to prevent a politician from using the name. Thus, it would cover the situation where the registrant of barack.com either wasted an important political resource by simply holding it and not using it, or where the registrant attempted to sell it to someone else who might prevent its use by Senator Obama. It does not seem to contemplate a situation where the registrant specifically attempts to sell the name to Senator Obama for a profit. There are also jurisdictional problems with the application of the PCAA. Currently, California is the only state with such legislation. It is not clear whether this legislation would apply in situations where neither the politician in question nor the domain name registrant is located in California. It is possible that the ability of web users to access the website in California would be a sufficient connection with California for the Californian law to apply. 62 Additionally, it is possible that if the domain name was 62 Although some case law suggests that the mere ability to access a website within a jurisdiction, without more, is insufficient basis at least for the assertion of personal jurisdiction against a defendant website operator. See, for example, Bensusan Restaurant Corp v King, 937 F Supp 295 (S.D.N.Y. 1996), aff d 126 F 3d 25 (2d Cir 1997) (the defendants who operated a jazz club in Missouri could not be subject to personal jurisdiction in New York by the owners of a jazz club with the same name in New York City in the absence of conduct greater than advertising their Missouri club on their website that was accessible in New York City, although not specifically directed to New York City residents). 14

16 registered in California, this would be sufficient grounds for Californian law to apply. 63 However, if this was the case, clever domain name cybersquatters would simply select a domain name registrar not situated in California. 64 Maybe if political cybersquatting is regarded as a sufficiently important activity for regulation at the federal or global level, certain ideas could be taken from the Californian legislation and incorporated into either a federal statute or global treaty. Alternately, at the global level, some of these ideas could be incorporated into a dispute resolution procedure such as the UDRP. Domain name registrants could contractually agree with registrars that they would submit to an arbitration procedure not unlike the UDRP if a politician, or perhaps political party, 65 later complained about registration of the relevant name, particularly in the context of an election. The bad faith factors in such a dispute procedure could be borrowed to some extent from the Californian PCAA, although they should perhaps be a little broader in order to cover situations where the politician in question has not yet registered any domain names. They should also cover situations where the registrant attempts to sell the domain name to either the politician or a third party. This approach may be quicker, cheaper and more efficient than federal legislation or an international treaty, particularly a treaty requiring implementing legislation. D. POLITICAL CYBERSQUATTING, DEFAMATION LAW AND THE RIGHT OF PUBLICITY 1. DEFAMATION Another group of laws that may apply to political cybersquatting conduct, albeit somewhat indirectly, are various tort laws that protect individual reputations from harmful conduct. These include defamation law, the right of publicity, 66 and some sui 63 The ACPA, for example, is a domain name law that includes in rem jurisdiction provisions in the case of domain names registered in a particular jurisdiction where the plaintiff is not otherwise able effectively to assert personal jurisdiction over the defendant domain name registrant: 15 U.S.C. 1125(d)(2)(A). 64 For example, a list of ICANN-accredited domain name registries from all over the world is available at: (last viewed on March 14, 2007). 65 Political parties may, in fact, be in a better position than politicians under the UDRP as currently drafted. See Friends of Kathleen Kennedy Townsend v Birt (WIPO Case No D ) (involving Kathleen Kennedy Townsend s name) (last viewed at March 14, 2007 and available at 6 ("Here, the claim for the domain names is brought by the individual politician, and not by the political action committee actively engaged in the raising of funds and promotion of Complainant's possible campaign. Had the claim been brought in the name of the Friends of Kathleen Kennedy Townsend, the result might well have been different. But it was not. ) 66 Michael Madow, Personality as Property: The Uneasy Case for Publicity Rights in PETER YU (ed), INTELLECTUAL PROPERTY AND INFORMATION WEALTH: ISSUES AND PRACTICES IN THE DIGITAL AGE, VOLUME 3, TRADEMARK AND UNFAIR COMPETITION, 345, 3451 (2007) (The right to publicity gives a 15

17 generis state legislation such as California s Business and Professions Code. 67 The most obvious tort that deals with a person s reputation is defamation. Defamation generally refers to false statements which damage an individual s reputation. 68 It may, in fact, be a state or federal wrong, depending on the context. 69 Although defamation may be relevant to variations of the conduct described in this article as political cyberfraud see infra it likely has little to no application to political cybersquatting. This is because cybersquatting does not deal with any statements that might damage an individual politician s reputation. Rather, it removes from the politician s ready accessibility a domain name that the politician might use to make statements in support of her campaign. Thus, defamation need not be discussed further with respect to political cybersquatting. 2. THE RIGHT OF PUBLICITY The state right of publicity, on the other hand, could possibly have some application to political cybersquatting. The right of publicity has been described as: the right of an individual to control the commercial use of his or her name, likeness, signature, or other personal characteristics. 70 It has further been likened to a trademarklike right in a famous person s attributes in the sense that it protects the goodwill inherent in that person s commercial persona. 71 The right of publicity operates much like a trademark in the sense that it: reserves to an individual celebrity the exclusive right to the commercial exploitation of his or her name, likeness, signature, or product endorsement. 72 To determine whether the right of publicity might have any application in the political cybersquatting context, two fundamental questions have to be answered. The first is whether the registration of a domain name corresponding with a politician s name celebrity a legal entitlement to the commercial value of her identity, and thereby enables her to determine the extent, manner, and timing of its commercial exploitation. ) See 17525(a), discussed in more detail in Part infra. JANET L SILVERBERG, BUSINESS TORTS, 1-6, id, 1-6, 6.01 (Defamation issues have arisen in federal constitutional law since the United States Supreme Court landmark decision in New York Times v Sullivan, 376 U.S. 254 (1964)). 70 GILSON, TRADEMARK PROTECTION AND PRACTICE, 1-2, 2.16[1]. 71 Id. ( The right of publicity is analogous to the right in a trademark. Both are exclusionary in nature, giving rise to injunctive relief and possible damages when they are violated, and both depend for their value to a great degree on public recognition, perception, and association. The goodwill which a trademark symbolizes is first cousin to the goodwill, or reputation and fame, of the celebrity. These establish the commercial value of the right to be protected, a value which in either case can be enormous. They significantly enhance the sales potential of the trademark or celebrity-endorsed products with which they are associated, and can create a formidable competitive advantage. ) 72 Id. 2.15[1][b]. 16

18 for the purposes of commercial profit amounts to a commercial exploitation 73 of the celebrity s name in the manner contemplated by the law. The second is whether politicians are protected by the right of publicity in the context of purely political campaigns, as distinct from other more commercial activities. Neither question has been definitely answered by any state or federal courts or legislatures in the United States. Additionally, the right of publicity is not accepted in all American states, 74 let alone globally, so that is an additional limitation. It is not clear whether the commercial sale or attempted sale of a domain name that corresponds to a politician s name is the kind of conduct generally contemplated within the right of publicity. Usually, the actions brought under this tort are concerned with the sale of specific items photographs, tee-shirts, magazines, toys, etc that contain, or are based on, an unauthorized likeness of a famous celebrity. 75 On the one hand, the sale of a domain name that corresponds to a famous celebrity s name may well be likened to the sale of a product that contains or constitutes the name or likeness of the person in question. On the other hand, could the sale of an unauthorized photograph, teeshirt, or coffee mug bearing the name or likeness of, say, Britney Spears, really be likened to the sale of a blank web page with the domain name britney.com, or even britneyspears.com? In the case of the physical goods, it would seem more plausible that consumers would be confused as to whether or not the pop singer, Britney Spears, had authorized the product line, than in the case of a blank web-page utilizing a domain name that corresponds with her name. This is because the goods in question might constitute a line of products that collectors may want to purchase, whereas a blank webpage or a webpage that is obviously for sale to the highest bidder - is unlikely to attract consumers in this way. Even if the domain name is regarded as a product that is being sold in the political cybersquatting context, it is not the kind of product sale generally contemplated 73 Id. 74 GILSON, TRADEMARK PROTECTION AND PRACTICE, 2.16[1] ( The publicity right is still developing and the courts are far from unanimous in defining its scope. Precedent (or the lack of it) in the selected forum may thus dictate reliance on trademark rights and unfair competition claims to the exclusion of, or in addition to, the publicity right. In either case the celebrity may rely on his or her federal registration, Section 43(a), common law unfair competition, and the same assortment of state statutes that are available in infringement actions involving other types of marks. ) 75 Winterland Concessions Co v Creative Screen Design Ltd, 210 U.S.P.Q. 6 (N.D. Ill 1980) (dealing with rock star names on tee shirts); Allen v Men s World Outlet Inc, 679 F Supp 360, U.S.P.Q. 2d 1850 (use of Woddy Allen look alike for clothing store advertisements); Hoffman v Capital Cities/ABC Inc, 255 F 3d 1180, 59 U.S.P.Q. 2d 1363 (9 th Cir, 2001) (use of digitally manipulated image of Dustin Hoffman in magazine). In this context, celebrity names will often attain a common law trademark status as well: GILSON, TRADEMARK PROTECTION AND PRACTICE, 1-2, 2.16[1] ( [A] celebrity s name or likeness may itself be a trademark, if it is used by the celebrity to identify the source of products or services and to distinguish them from those of others. GLORIA VANDERBILT jeans, JIMMY DEAN sausage, REGGIE candy bars, are but a few examples of celebrity-trademarked products. If the celebrity uses the name or likeness in this way, he or she can ordinarily obtain federal registration, so the name or likeness will enjoy the benefits provided by the [Lanham Act].) 17

19 by the right of publicity. It is not really a sale to consumers of an unauthorized celebrity likeness. Rather, it is potentially a sale of a product to an individual who might utilize is it many ways as an unauthorized fan site in the case of a celebrity or as a site to disseminate information about a politician in the political context. In other words, perhaps political cybersquatting is more like selling the means through which someone may engage in conduct that may or may not be sanctioned by various laws including political cyberfraud laws. 76 It may thus result in some form of contributory infringement for some other kind of tort but may not in and of itself amount to conduct that would ordinarily be proscribed by the right of publicity. Even if this analysis is not correct, there is still an open question as to whether the right of publicity protects politicians, as opposed to celebrities whose notoriety is based on commercial, rather than political, aspects of their persona. 77 This question was recently cast into the limelight in a case involving Arnold Schwarzenegger, as governor of California, filing a lawsuit against a manufacturer of bobblehead dolls bearing his name and likeness. 78 Although the case was settled, it raised many issues as to the application of the right of publicity to politicians, as opposed to people whose celebrity is derived from other means. The issue was particularly confusing in the Governor Schwarzenegger situation because he had attained fame and celebrity through sports, film, and political careers. Had the matter been judicially decided, the court may have had to decide specifically whether the defendant s dolls were commenting on the Governor s political persona in which case they may have been protected by the First Amendment or could be seen as purely usurping the Governor s commercial interests in his persona and likeness See Part, infra. 77 See, for example, Martin Luther King, Jr Center for Social Change, Inc v American Heritage Products, Inc., 508 F. Supp. 854 (N.D. Ga. 1981), rev d per curiam, 694 F. 2d. 674 (11 th Cir. 1983) (holding that the right of publicity extends to public figures who are not public officials in the sense of holding public office); New York Magazine v The Metropolitan Transit Authority, 987 F. Supp. 254 (1997) (holding that then-mayor Rudolph Guiliani could not succeed in a right of publicity with respect to advertisements for the New York times that depicted him in a less than complimentary light, and that an attempt to prevent display of the advertisements on public buses in New York City was an infringement of the New York Times First Amendment rights); New York Magazine v The Metropolitan Transit Authority, 987 F. Supp. 254, 269 (1997) ( Though the ad as a whole is commercial speech, the advertisement undeniably includes an element of political commentary. It would be anomalous indeed to permit a reprint of a caricature of Guiliani that had appeared in the magazine, but prohibit the Ad at issue which includes speech of public interest. 78 See discussion in Tyler Ochoa, The Schwarzenegger Bobblehead Case: Introduction and Statement of Facts, 45 SANTA CLARA L REV 547 (2005). 79 Charles Harder and Henry Self III Schwarzenegger vs Bobbleheads: The Case for Schwarzenneger, 45 SANTA CLARA L REV 547, 557 (2005) (noting that there is a public affairs exception to the right of publicity in California, but that it would not likely apply to the Schwarzenegger bobblehead dolls because they contained no discernable political slogans or messages, but were merely a depiction or imitation of Schwarzenegger in the form of a doll); William Gallagher, Strategic Intellectual Property Litigation, the Right of Publicity, and the Attenuation of Free Speech: Lessons from the Schwarzenegger Bobblehead Doll War (and Peace), 45 SANTA CLARA L REV 581, (2005) ( [T]he Schwarzenegger 18

20 In the course of debates over the Schwarzenegger bobblehead dolls, commentators noted how few right of publicity actions had been brought by sitting politicians in the past. 80 Various suggestions were raised as to why this might be the case. They included: (a) politicians are often not generally concerned with commercial use of their image because it is not their typical business ; 81 (b) politicians do not wish to invest resources into such claims; 82 (c) politicians want to avoid negative publicity that may arise from such claims 83 partly because they do not want to appear humorles or soft-skinned ; 84 and, (d) politicians are aware that the sale of products bearing their name or likeness might be protected by the First Amendment. 85 A number of arguments may be raised in favor of extending the right of publicity to politicians and other public figures who are not celebrities in the sports and likeness was not being used to sell other products but was the product itself, albeit in a creative expression of that image. The Schwarzenegger image was thus part of the raw materials or the medium that the bobblehead doll s creators used to convey the multivocal messages the doll communicated. This message invariably comments, at least in part, on the Schwarzenegger political image and persona even if it also simultaneously comments on the Schwarzenegger Hollywood movie star persona. The governor himself, after all, has certainly made effective use of his Hollwyood tough-guy, Terminator image in political life. Schwarzenegger, now the governor, has become the Governator, a play on words that evokes the dual personas of the current Schwarzenegger image. This image is also used extensively in political cartoons commenting on Schwarzenegger s new status as a politician. It would be disturbing for a court to hold that the right of publicity should trump the defendants right to sell a doll that similarly comments on the Schwarzenegger image. Such a decision would also be incongruous because it would permit Schwarzenegger to monopolize his image as the Governator for both political and private profit. ) 80 William Gallagher, Strategic Intellectual Property Litigation, the Right of Publicity, and the Attenuation of Free Speech: Lessons from the Schwarzenegger Bobblehead Doll War (and Peace), 45 SANTA CLARA L REV 581, (2005) ([I]t was virtually unprecedented for a sitting politician to sue in order to control the use of his or her image in similar circumstances [to the Schwarzenegger litigation]. The defendants sold an entire series of bobbleheads depicting both living and deceased politicians; yet they had never previously been subject to legal threats of proceedings to prevent the sales of these dolls. In fact, as many news reports gleefully explained the [defendants] had previously sent copies of dolls to several politicians who apparently appreciated (or, perhaps, acquiesced to) having their likeness made into a bobblehead doll. ); Charles Harder and Henry Self III Schwarzenegger vs Bobbleheads: The Case for Schwarzenneger, 45 SANTA CLARA L REV 547, 567 (2005) ( Few courts have had an opportunity to rule on an unauthorized commercial use of a political figure s name or likeness. Politicians typically do not pursue such claims ) 81 Charles Harder and Henry Self III Schwarzenegger vs Bobbleheads: The Case for Schwarzenneger, 45 SANTA CLARA L REV 547, (2005) id., 568. id. 84 William Gallagher, Strategic Intellectual Property Litigation, the Right of Publicity, and the Attenuation of Free Speech: Lessons from the Schwarzenegger Bobblehead Doll War (and Peace), 45 SANTA CLARA L REV 581, 583 (2005). 85 id. 19